January 29, 2017

Hasty thoughts on the Trump executive order

Now, the main thing to keep in mind is the pointlessness of it all. Walling out people who are fleeing tyranny won’t win the war. Only victory over the enemy ever wins a war. If we’ve decided not to win, we should openly admit we’ve accepted defeat. But pretending to fight while in reality locking the door and hiding behind the couch is just cowardice. Nothing but plain, old fashioned cowardice, no matter how much His Excellency might like to comb it over and pretend it’s bold.

Of course admitting people from foreign lands is something with a non-zero risk. Of course it’s possible that some will enter pretending to be refugees who are in fact enemy agents. The solution to that is to defeat the enemy—not to condemn to death or slavery the vast majority of refugees who are fleeing in search of safety. To do the latter is a disgrace to everything that makes this country what it is supposed to be: a refuge and a haven.

Is the Executive Order illegal? Well, it’s definitely constitutional. All that talk about “religious test” is silly—the Constitution only forbids religious tests for holding public office, not all religious tests, and even an order that explicitly blocked all people of one particular religion from entering the country would be constitutional—nothing in the First Amendment prohibits that, since it would leave everyone as free to practice their religion as before. Some are trying to argue that granting preference to Christian refugees violates the Establishment Clause—that just isn’t true. If people are being persecuted because of their religion and the government decides to admit them for that reason, that in no way establishes religion. Even more strongly, it just seems rational to say that the Commander in Chief, in time of war as we are, has the authority to entirely shut down the nation’s borders unilaterally if doing so is, in his opinion, in the national interest.

To emphasize: I think the Executive Order is constitutional. I think it’s stupid and immoral in every other way.

That said, it might still be illegal. Congress is the lawmaker, and Cato’s David Bier argues that the Order violates the Immigration and Nationality Act of 1965. That seems plausible to me. The list of countries that the Order refers to was added after that Act, but that doesn’t change the Act’s prohibition on discriminating against countries in the issuance of immigrant visas. Congress not only sets the naturalization laws (that’s the basis for the Immigration and Naturalization Act, though some have argued that the authority to naturalize does not actually grant Congress power to restrict immigration; a much bigger argument that has to await some other day), but it also sets the limits of the President’s authority during wartime.

It’s quite clear now that the President’s failure to consult legal experts before releasing this bombshell has led to terrible confusion, and apparently it was at the highest level that the determination was made to apply it to green-card holders, which David French rightly calls “madness.” And now that several federal district courts have ordered Customs and Border Patrol to allow travelers who’ve been detained at airports to speak to their attorneys, it appears that a day later, that is still not happening. Someone—and that ultimately must mean Trump—is refusing to obey these court orders. That is totally intolerable.

Incidentally, it’s unlikely that this was done as some clever ploy for PR purposes—Trump and crew aren’t that smart. Rather, he has proven time and again that his vision of leadership is: ordering people to do things, as thoughtlessly and loudly as possible.* Actual leadership, of course—leadership of the George Washington, Dwight Eisenhower variety—is about fostering others and articulating an ideal that merits support. It’s not showy; it’s patient, thoughtful, often boring, and rarely self-aggrandizing. Trump’s not intelligent enough to muster a clever plan to lure lefties into self-defeating acts. He’s just a blowhard, and a blowhard’s gonna blow hard.

Many object that the protestors were silent when Pres. Obama blocked Syrian refugees. Maybe so—although my memory is that people were outraged by that, and said so at the time. I certainly was and did. But so what? If people are now coming to their senses about the dangers of executive power, that’s a good thing, and they should be encouraged—not hooted down because you think it more important to call them hypocrites than to take advantage of an opportunity to push back.

Best of luck to the protestors. And to the fine ACLU lawyers fighting back. I’m proud to be a member of the bar today.

Many supporters and opponents of President Trump's executive order are conflating the terms "immigrant" (which encompasses green card holders), "nonimmigrant," and "refugee."

It's not lawful to ban immigrants because of "nationality, place of birth, or place of residence." This nondiscrimination provision comes from a 1965 law (8 U.S.C. 1152 Sec. 202(a)(1)(A)) that limits the 1952 law (8 U.S.C. 1182 Sec. 212(f)) that the president cites.

It's lawful to ban nonimmigrants for almost any reason. These are people who are temporarily visiting the United States, like tourists or students.

It's lawful to ban refugees for almost any reason. But banning all refugees from particular countries is harsh and unwise. We still should admit well-vetted persons.

Understanding these distinctions is important because supporters of President Trump's executive order continue to wrongly insist that the order is lawful and that President Obama did almost the same thing in 2011. And opponents of President Trump's executive order continue to wrongly insist that banning refugees violates the Constitution or the law.

President Trump's executive order covers not only refugees but also immigrants and nonimmigrants. As noted above, it's not lawful to discriminate in the issuance of an *immigrant* visa because of the person's "nationality, place of birth, or place of residence."

President Obama's action (which wasn't disclosed at the time) covered only refugees and, therefore, did not violate the Constitution or the law, even if one finds it objectionable for other reasons.